CM-09-07-132CITY OF ROUND ROCK
AGREEMENT FOR CONSULTING SERVICES
FOR PRE -CONSTRUCTION DESIGN SERVICES FOR POLICY CENTER
WITH CHASCO CONSTRUCTORS, LTD., L.L.P.
This Agreement is made and entered into on this the ift., day of . 2009,
by and between the City of Round Rock, a Texas home -rule municipal corporation, whose
offices are located at 221 East Main Street, Round Rock, Texas 78664 (hereinafter referred to as
the "City"), and Chasco Constructors, Ltd., L.L.P., whose offices are located at 2801 Kiphen
Road, Round Rock Texas, 78664 (hereinafter referred to as "Chasco" or "Consultant").
RECITALS:
WHEREAS, City is contemplating constructing a new City Hall Policy Center on
property it owns near the intersection of Brown Street and Florence Street in Round Rock,
Texas; and
WHEREAS, while City currently has funds available for construction of approximately
20,000 square feet of building area and associated parking, it is anticipated that City's need for
additional space will increase in the future; and
WHEREAS, City is therefore contemplating entering into a public/private partnership
arrangement whereby City will own but its private partner will initially finance, construct, and/or
occupy an additional 40,000 square feet of building area in conjunction with the City Hall Policy
Center, such additional space to be later available for utilization by City; and
WHEREAS, City has previously engaged Austin Architecture Plus to furnish
architectural design services for the initially -contemplated 20,000 square foot building; and
WHEREAS, City has previously evidenced its selection of Chasco as construction
manager at risk for construction of its City Hall Policy Center; and
WHEREAS, City now desires to contract with Chasco for certain pre -construction
services to be rendered in collaboration with Austin Architecture Plus, such services being
necessary to plan for expansion of the initially -contemplated 20,000 square foot building to a
60,000 square foot building; and
WHEREAS, Chasco's delivery of such pre -construction services is the subject matter of
this agreement, but Chasco's provision of such services does not in any manner affect City's
right to determine, in its sole and unfettered discretion, whether or not to proceed with any future
construction of the City Hall Policy Center; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
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NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date it has been signed by every party hereto,
and shall remain in full force and effect unless and until it expires by operation of the term
indicated herein, or is terminated or extended as provided herein.
The term of this Agreement shall be until full and satisfactory completion of the work
specified herein is achieved, but in no event later than twelve (12) months from the effective date
of this Agreement.
City reserves the right to review the services at any time, including at the end of any
deliverable or task, and may elect to terminate the services and this Agreement with or without
cause or may elect to continue.
1.02 SCOPE OF SERVICES
Consultant has submitted its Scope of Services for the required pre -construction services,
and same is attached hereto as Exhibit A and made a part hereof by reference for all appropriate
purposes. This Agreement, including such Scope of Services attachment, is entered into by and
between the City of Round Rock or its subsidiaries or affiliates (collectively "City") and Chasco
Constructors, Ltd., L.L.P., or any entity directly or indirectly owned or controlled by same
(collectively "Chasco"). This Agreement shall evidence the entire understanding and agreement
between the parties and shall supersede any prior proposals, correspondence or discussions.
Consultant shall satisfactorily provide all services described under this Scope of Services
category if directed to do so by City's issuance of a written Notice to Proceed specifically for
such services. Consultant's undertakings shall be limited to performing services for City and/or
advising City concerning those matters on which Consultant has been specifically engaged.
Consultant shall perform services in accordance with this Agreement, in accordance with the
appended Scope of Services, and in accordance with due care and prevailing consulting industry
standards for comparable services.
1.03 PAYMENT FOR SERVICES; SUPPLEMENTAL AGREEMENTS
Payment for Services: In consideration for the consulting services to be performed by
Consultant, City agrees to pay Consultant a not -to -exceed sum of Three Thousand and No/100
Dollars ($3,000.00). The parties expressly acknowledge that certain services are to be provided
by Consultant only if directed to do so by City's issuance of a written Notice to Proceed
specifically for such services.
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Payment of Invoices. City reserves the right to correct any error that may be discovered
in any invoice that may have been paid to Consultant and to adjust same to meet the
requirements of this Agreement. Following approval of invoices, City shall endeavor to pay
Consultant promptly, but no later than the time period required under the Texas Prompt Payment
Act described in Section 1.06 herein. Under no circumstances shall Consultant be entitled to
receive interest on payments which are late because of a good faith dispute between Consultant
and City or because of amounts which City has a right to withhold under this Agreement or state
law. City shall be responsible for any sales, gross receipts or similar taxes applicable to the
services, but not for taxes based upon Consultant's net income.
Offsets. City may, at its option, offset any amounts due and payable under this
Agreement against any debt (including taxes) lawfully due to City from Consultant, regardless of
whether the amount due arises pursuant to the terms of this Agreement or otherwise and
regardless of whether or not the debt due to City has been reduced to judgment by a court.
1.06 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be
made by City to Consultant will be made within thirty (30) days of the date City receives goods
under this Agreement, the date the performance of the services under this Agreement are
completed, or the date City receives a correct invoice for the goods or services, whichever is
later. Consultant may charge interest on an overdue payment at the "rate in effect" on September
1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas
Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to
payments made by City in the event:
(1) There is a bona fide dispute between City and Consultant, a contractor,
subcontractor, or supplier about the goods delivered or the service performed
that cause the payment to be late; or
(2) There is a bona fide dispute between Consultant and a subcontractor or
between a subcontractor and its supplier about the goods delivered or the
service performed that causes the payment to be late; or
The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
(4) The invoice is not mailed to City in strict accordance with any instruction on
the purchase order relating to the payment.
1.07 NON -APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City may effect such termination by
giving Consultant a written notice of termination at the end of its then -current fiscal year.
(3)
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1.08 TERMINATION OR DEFAULT
Termination. In connection with the work outlined in this Agreement, it is agreed and
fully understood by Consultant that City may cancel or indefinitely suspend further work
hereunder or terminate this Agreement either for cause or for the convenience of City, upon
fifteen (15) days' written notice to Consultant, with the understanding that immediately upon
receipt of said notice all work and labor being performed under this Agreement shall cease.
Consultant shall invoice City for all work satisfactorily completed and shall be compensated in
accordance with the terms of this Agreement for all work accomplished prior to the receipt of
said notice. No amount shall be due for lost or anticipated profits. City acknowledges
Consultant's documents as instruments of professional service. Nevertheless, the plans and
specifications prepared under this Agreement (including by way of illustration and not limitation
all plans, field surveys, maps, cross sections and other data, designs and work related to the
Project) shall become the property of City upon completion of the work and payment in full of
all monies due to Consultant. Should City subsequently contract with a new consultant for
continuation of services on the Project, Consultant shall cooperate in providing information.
City agrees, to the fullest extent permitted by law, to indemnify and hold Consultant harmless
from any claim, liability or cost (including reasonable attorneys' fees) arising out of any
authorized reuse or modification of the construction documents by City or any person or entity
that acquires or obtains the plans and specifications from or through City without the written
authorization of Consultant.
Default. Nothing contained in the preceding paragraph shall require City to pay for any
work which is unsatisfactory as determined by City or which is not submitted in compliance with
the terms of this Agreement. City shall not be required to make any payments to Consultant
when Consultant is in default under this Agreement, nor shall this paragraph constitute a waiver
of any right, at law and at equity, which City may have if Consultant is in default, including the
right to bring legal action for damages or to force specific performance of this Agreement.
1.09 CITY'S SOLE RIGHT TO DETERMINE WHETHER TO PROCEED
Consultant expressly acknowledges its understanding and acceptance of the unfettered
right of City to determine, in its sole discretion, whether or not to proceed with any future
construction of the City Hall Policy Center. Nothing contained herein, nor any prior dealings
between City and Consultant with respect to this Project, shall confer any right whatsoever upon
Consultant to receive payment or consideration for work connected with such Project.
1.10 CITY'S RESPONSIBILITIES
Full information. City shall provide full information regarding Project requirements.
City shall have the responsibility of providing Consultant with such documentation and
information as is reasonably required, if any, to enable Consultant to provide the services called
for. City shall cause its employees and any third parties who are otherwise assisting, advising or
representing City to cooperate on a timely basis with Consultant in the provision of its services.
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6. City shall not require Consultant its employees or subcontractors to devote full
time to performing the services required by this Agreement; and
7. Neither Consultant nor its employees or subcontractors are eligible to participate
in any employee pension, health, vacation pay, sick pay, or other fringe benefit
plan of City.
1.12 CONFIDENTIALITY; DISPOSITION OF MATERIALS
Each party shall take reasonable measures to preserve the confidentiality of any
proprietary or confidential information provided to it in connection with this engagement,
provided that no claim may be made for any failure to protect information that occurs more than
two (2) years after the termination or expiration of this Agreement.
At the conclusion of the engagement, upon written request, each party shall return to the
other all materials, data and documents provided to the other party, except that Consultant may
retain one (1) copy of City's materials for its archival purposes, subject to Consultant's
confidentiality obligations hereunder. City shall retain ownership of all data and materials
provided by it to Consultant. Original drawings shall remain the property of Consultant.
The parties expressly acknowledge that City is a Texas home -rule municipality and, as
such, is subject to the Texas Public Information Act, and its duties run in accordance therewith.
1.13 LIMITATION OF LIABILITY
Services provided and performed by Consultant under this Agreement shall be performed
in a manner consistent with that degree of care and skill ordinarily exercised by members of the
same profession currently practicing under similar circumstances. However, should any of
Consultant's services not conform to these requirements and the Scope of Services, then and in
that event City shall give written notification to Consultant; thereafter, Consultant shall, at its
discretion, either (a) promptly re -perform such services to City's satisfaction at no additional
charge, or (b) promptly refund the portion of the fees paid with respect to such services.
In the event that re -performance of services or refund of applicable fees would not
provide an adequate remedy to City for damages arising from the performance, nonperformance
or breach of this Agreement and the appended Scope of Services, then and in that event
Consultant's maximum total liability, including that of any employee, affiliate, agent or
contractor, relating to its services, regardless of the cause of action, shall be limited to direct
damages in an amount not to exceed the total fees payable under this Agreement.
The foregoing limitation of liability shall not apply to the extent that any liability arises
from the gross negligence or willful misconduct of Consultant, its employees, affiliates, agents or
contractors, or from bodily injury, death of any person, or damage to any real or tangible
personal property. Neither party shall be liable for any indirect, special or consequential
damages.
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1.14 INDEMNIFICATION
Consultant agrees to hold harmless and indemnify City for and from any third party claim
or liability (including reasonable defense costs and attorneys' fees) to the extent arising from or
in connection with the negligence of Consultant or its employees or agents in the course of
performing services. The limitation of liability set forth in Section 1.13 herein applies to
Consultant's indemnity obligations pursuant to this Section 1.14, but the limitation shall not
apply to the extent that any liability arises from the gross negligence or willful misconduct of
Consultant, its employees, affiliates, agents or contractors or from bodily injury, death of any
person, of damage to any real or tangible personal property.
Except to the extent that Consultant is obligated to indemnify City, City shall indemnify
and hold Consultant, its employees, affiliates or agents harmless from any third party claim or
liability (including reasonable defense costs and attorneys' fees) to the extent arising from or in
connection with the services performed by Consultant or City's use thereof.
1.15 INSURANCE
Insurance. Consultant, at Consultant's sole cost, shall have and maintain during the term
of this Agreement professional liability insurance coverage in the minimum amount of Five
Hundred Thousand Dollars from a company authorized to do insurance business in Texas and
otherwise acceptable to City.
Subconsultant Insurance. Without limiting any of the other obligations or liabilities of
Consultant, Consultant shall require each subconsultant performing work under this Agreement
to maintain during the term of the Agreement, at the subconsultant's own expense, the same
stipulated minimum insurance required in the immediately preceding paragraph, including the
required provisions and additional policy conditions as shown below.
Consultant shall obtain and monitor the certificates of insurance from each subconsultant
in order to assure compliance with the insurance requirements. Consultant must retain the
certificates of insurance for the duration of this Agreement, and shall have the responsibility of
enforcing these insurance requirements among its subconsultants. City shall be entitled, upon
request and without expense, to receive copies of these certificates of insurance.
Insurance Policy Endorsements. Each insurance policy hereunder shall include the
following conditions by endorsement to the policy:
(1) Each policy shall require that thirty (30) days prior to the expiration, cancellation,
on -renewal or any material change in coverage, a notice thereof shall be given to
City by certified mail to:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
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Consultant shall also notify City, within 24 hours of receipt, of any notices of expiration,
cancellation, non -renewal, or material change in coverage it receives from its insurer.
(2) Companies issuing the insurance policies shall have no recourse against City for
payment of any premiums or assessments for any deductibles which all are at the sole
responsibility and risk of Consultant.
(3) Terms "City" or "City of Round Rock" shall include all authorities, boards,
commissions, departments, and officers of City and individual members, employees and
agents in their official capacities, or while acting on behalf of the City of Round Rock.
(4) The policy clause "Other Insurance" shall not apply to any insurance coverage
currently held by City, to any future coverage, or to City's Self -Insured Retentions of
whatever nature.
(5) Consultant and City mutually waive subrogation rights each may have against the
other for loss or damage, to the extent same is covered by the proceeds of insurance.
Cost of Insurance. The cost of all insurance required herein to be secured and
maintained by Consultant shall be borne solely by Consultant, with certificates of insurance
evidencing such minimum coverage in force to be filed with the City.
1.16 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Compliance with Laws. Consultant, its consultants, agents, employees and
subcontractors shall use best efforts to comply with all applicable federal and state laws, the
Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules
and regulations promulgated by local, state and national boards, bureaus and agencies.
Consultant shall further obtain all permits and licenses required in the performance of the
services contracted for herein.
Taxes. Consultant will pay all taxes, if any, required by law arising by virtue of the
services performed hereunder. City is qualified for exemption pursuant to the provisions of
Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act.
1.17 FINANCIAL INTEREST PROHIBITED
Consultant covenants and represents that Consultant, its officers, employees, agents,
consultants and subcontractors will have no financial interest, direct or indirect, in the purchase
or sale of any product, materials or equipment that will be recommended or required for the
construction of the Project.
1.18 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party shall
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assign, sublet or transfer any interest in this Agreement without prior written authorization of the
other party.
1.19 LOCAL, STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incurred while performing services under this Agreement. City will not do the following:
1. Withhold FICA from Consultant's payments or make FICA payments on
Consultant's behalf; or
2. Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
3. Withhold state or federal income tax from Consultant's payments.
1.20 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
1. When delivered personally to recipient's address as stated in this Agreement; or
2. Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Consultant:
Chasco Constructors, Ltd., L.L.P.
2801 Kiphen Road
Round Rock, TX 78664
Notice to City:
City Manager
221 East Main Street
Round Rock, TX 78664
AND TO:
City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of City and Consultant.
1.21 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas; if legal action is necessary
by either party with respect to the enforcement of any or all of the terms or conditions herein,
exclusive venue shall lie in Williamson County, Texas. This Agreement shall be governed by
and construed in accordance with the laws and court decisions of the State of Texas.
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1.22 EXCLUSIVE AGREEMENT
This document, and all appended documents, constitutes the entire Agreement between
Consultant and City. This Agreement may only be amended or supplemented by mutual
agreement of the parties hereto in writing.
1.23 DISPUTE RESOLUTION
If a dispute or claim arises under this Agreement, the parties agree to first try to resolve
the dispute or claim by appropriate internal means, including referral to each party's senior
management. If the parties cannot reach a mutually satisfactory resolution, then and in that event
any such dispute or claim will be sought to be resolved with the help of a mutually selected
mediator. If the parties cannot agree on a mediator, City and Consultant shall each select a
mediator and the two mediators shall agree upon a third mediator. Any costs and fees, other than
attorney fees, associated with the mediation shall be shared equally by the parties.
City and Consultant hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9
USC Section 1-14) or any applicable state arbitration statute.
1.24 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion or provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion or
provision held to be void. The parties further agree to amend this Agreement, through a process
of mutual agreement and negotiation, to replace any stricken provision with a valid provision
that comes as close as possible to the intent of the stricken provision. The provisions of this
section shall not prevent this entire Agreement from being void should a provision which is of
the essence of this Agreement be determined void.
1.25 MISCELLANEOUS PROVISIONS
Time of the Essence. Consultant agrees that time is of the essence and that any failure of
Consultant to complete the services for each phase of this Agreement within the agreed Project
schedule may constitute a material breach of this Agreement. Consultant shall be fully
responsible for its delays or for failures to use reasonable efforts in accordance with the terms of
this Agreement. Where damage is caused to City due to Consultant's failure to perform in these
circumstances, City may withhold, to the extent of such damage, Consultant's payments
hereunder without waiver of any of City's additional legal rights or remedies. City shall render
decisions pertaining to Consultant's work promptly to avoid unreasonable delays in the orderly
progress of Consultant's work.
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Force Majeure. Neither City nor Consultant shall be deemed in violation of this
Agreement if it is prevented from performing any of its obligations hereunder by reasons for
which it is not responsible or circumstances beyond its control. However, notice of such
impediment or delay in performance must be timely given, and all reasonable efforts undertaken
to mitigate its effects.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
indicated.
CITY OF ROUND ROCK, TEXAS
By:
Jam . Nuse, P.E., City Manager
Date ned: 7-/C9
FOCITY, APPROVED AS TO FORM:
Stepha
L.
L. Sheets, City Attorney
CHASCO CONSTRUCTORS, :., L.L.P.
By:'
Printed Name:
Title:
Date Signed:
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ATTEST:
Sara L. White, City Secreta
Date Signed: 7l C'
EXHIBIT "A"
SCOPE OF SERVICES
Pre -construction Services:
A lump sum of $3,000.00, inclusive of any reimbursable expenses, shall be paid to Chasco for
pre -construction services performed to aid architects, the design team, and the Project owner,
such services to include but not be limited to developing plans, costs, cost estimates, and
schedules for the Project. Weekly meetings will be required of Chasco throughout the design
and pre -construction process.
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SUBJECT:
ITEM:
Department:
Staff Person:
Justification:
City Manager—July 10, 2009
Consider executing an Agreement for Consulting Services for Pre -Construction
Design Serviced for Policy Center with Chasco Constructors.
Engineering and Development Services
Thomas E. Word, Jr. P.E., Chief of Public Works Operations
Larry Madsen, Construction Manager
The City now desires to contract with Chasco for certain pre -construction services to be
rendered in collaboration with Austin Architecture Plus with Barnes Gromatzky Architects, such
services being necessary to plan for expansion of the initially -contemplated 20,000 square foot
building to a 60,000 square foot building.
Funding:
Cost: $3,000.00
Source of funds: 2002 G.O. Bonds
Outside Resources:
Austin Architecture Plus, Inc. with Barnes Gromatzky Architects
Background Information:
On February 26, 2009 City Council approved Chasco Constructors as Construction Manager at
Risk for the City Hall Policy Center.
Public Comment: N/A
DATE: July 8, 2009
UPDATED APRIL 2008
!Consider executing an Agreement for Consulting Services for Pre-Conshustice Design Services for Poky Caner will Chasm Ccesbuoices
Request for City CounciUCity Manager Action
Q City Counal El City Manager
Submit completed form for all City Manager and City Council approvals.
Department Name: Engineering and Development Services
Contact Person: Chez Gordon / Kathy Michna
For At3inStr>AIirlef9NLY
JUL 0 8 2009
Received:
Tay is j Ni. •
. r32-0
Original Documents Received:
Project Name: city KM Pony Center
ContractorNendor: chesco Conet,ucfare, Ltl., LLP.
Project Mgr/Resource: Lary Merisel
Funding Source: 2002 Genial 0Wgetion Boras
Project Coordinator:
Lena Meisel
Assigned Attorney. Steve Sheets
City Council or City Manager Approval Date:
Agenda Wording
Additional funding Source:
Amount
Account Number
t0.ka.o9
03.000
Finance Information
Is Funding Required?
Mal Construction Contract
CD Construction Contract Amendment
D Change Circler
Yes O No pD
DChange in Quantity IIkreseen Circumstances
Initial Professional Services Agreement
O Supplemental Professional Service Agreement #
Purchasing/Service Agreement
ci Purchase Order
Item(s) to be purchased
Other (Please dearly identify action on lines below)
Agreement for Consulting Services for Pre -Construction
Design SWIMS
Amount
$3,000
APPROVALS
(m be completed ONLY by Finance)
FINANCE Final Finance Approval Required
WA Approved
D D Finance/CIP Date
DFinance/Acct Date
DPurchasing Date
OD Budget Date
Approved
Finance Director Da
te
Once approvals have been obtained, please forward the RFA, blue sheet, backup information and originals to City Secretary, Sara White.
ITEMS WILL NOT BE PLACED ON THE COUNCIL AGENDA WITHOUT FINANCE AND LEGAL APPROVAL PRIOR TO SUBMISSION.
REVISED 7/6/2009